Correction’s Play Role In Keeping Sex Offenders Off Social Networking Sites

By Art Bowker, Cybercrime Specialist

Published: 03/26/2012

Recently, a federal court struck down a Louisiana state law that prohibited sex offenders convicted of crimes involving minors from “using or accessing of social networking sites websites, chat rooms, and peer-to-peer networks [1].” The ruling found that the law impacted the First Amendment and was unconstitutionally vague. The court further concluded that it could not be cured through administrative regulations. The law covered both sex offenders under supervision and those who had completed their sentence. Additionally the social media definition was extremely broad and could have been interpreted to include the court’s own website. Needless to say the law had some major deficiencies. Louisiana appears posed to give it another go, correcting the deficiencies noted in the decision. The question is should they?

The reality is that social media is so intertwined with living in today’s society that any prohibition is sure to have a negative impact on whether an offender can get a job, find needed services, etc. But then again the dangerousness of an unmonitored sex offender using the Internet is very real. What to do? I read an interesting piece by Eric Goldman [2]about this issue and the pitfalls of the Louisiana law. One thing that he noted was:

The ruling doesn’t require social media sites to allow sex offenders on their sites, and they can still use the Adam Walsh/KIDS Act database to block known sex offender aliases. (Of course sex offenders may not properly report all of their aliases, a general deficiency of the self-reporting database approach). Thus, striking down this law doesn’t immediately open up all of the Internet to the sex offenders. Nevertheless, it does mean that they can use the Internet without inadvertently committing a crime.”

This got me thinking what if more sites followed Facebook’s policy [3]on not allowing sex offenders on their sites. Could enacting laws that prohibit sex offenders who use a site against the user agreement be one piece to this legislative quagmire? Facebook’s policy no doubt came into play because of the bad press some social networking sites got over sex offenders trawling the various social networking sites. They simply didn’t want sex offenders joining up like they had on other sites. I understand why they have this prohibition. They allow minors to join, age 13-17, and wanted a “safe” environment. But what about other sites, particularly those might specifically cater to minors? Do they have such a ban? I was shocked to find out they do not. The user agreements of the big gaming sites, X-Box Online [4]; Playstation [5]; and Nintendo [6] do not ban sex offenders from joining or participating. Even Disney’s Club Penguin [7], does not have a prohibition against sex offenders joining the site. In fairness, these sites do bar activities that are illegal, just not individuals that have been convicted of engaging in such activities, such as sex crimes.

So the sites that are gaming in nature and/or cater to minors do not prohibit sex offenders on their sites. Yet they serve no legitimate purpose for offender reintegration. After all, there is no employment services section on X-Box Online, at least not in the real world. I don’t think giving sex offenders “recreation” in isolation, filled with role playing as well as access to minors is a legitimate reason for allowing them on gaming sites. Interesting, Facebook, which is interconnected with not only individuals but businesses, education, causes, etc. bars sex offender from its site, because a portion of its members are minors. Don’t get me wrong. I understand Facebook’s reason and understand the risk. But there does seem to be something a miss here. Should sites start barring sex offenders from their sites in total? I think it would start with those which have minors on them and would quickly expand to the entire Internet. After all, with the exception of adult oriented sites, there are few sites in the mainstream that would want to be known as one of the few locations that allows sex offenders to be members. But if we allow legislatures to make the decisions you are likely to get sites that are important in rehabilation prohibited as well.

Legislatures need to start working with corrections department on what is the best way to manage cyber-risk. Corrections obviously has got to step up its game but I think they can come to terms with cyber-risk management. If they don’t who then? Who is in the best position to judgement offender risk? Probation/parole departments time to get into the 21st Century and quick belly aching about laws being passed without consideration of the rehabiliative impact.

Additionally, the focus needs to be on sex offenders under a correctional supervision not those who have completed their sentence. I also think states would then be better served by providing community corrections with the tools needed to manage the risk posed by sex offender’s online. This means giving officers the ability to restrict sites that pose a risk for re-offending behavior. It also means allowing officers to restrict hardware and software used by offenders to that which can be monitored and/searched. States should also provide the legal framework for officers to install monitoring software and to be able to conduct computer searches. States should also provide the resources, namely training, software, and hardware to officers for this to occur.

Providing blanket restrictions that just tie the hands of officers and offenders is bad policy. (Please note I am talking about offenders in the community. Note those behind bars. See Why Does Your Facebook Profile have an Inmate Number? [8]) Let those who are experienced in corrections make decisions on managing cyber-risk. Give them guidance but not legal mandates.

Yes, I know there was provisions in the Louisiana law that allowed officers to grant permission but few if any officers are going to go out on a limb to grant an exemption to a sex offender, particularly when they have no tools to manage risk in the first place. Maybe just maybe, states would be better off in directing their corrections to come up with a cyber-supervision policy for their review and approval. I think the American Probation and Parole Association Issue paper [9] is a good place to start the discussion (disclaimer, I had a hand in writing it!). There are ways to manage cyber-risk. In some cases, such as gaming sites, officers are right to prohibit access. Access to other sites, particularly those that directly impact employment need to be managed not prohibited.

I also would avoid passing restrictions on individuals that have already served their sentence. I have no issue with them having to report Internet identifers as part of sex offender registration but barring them from sections of the Internet, without realizing how interconnected the world and the Internet is is fool-hearty. For repeat sex offenders, particularly those who use the Internet as a tool for exploitation, consider mandatory sentencing that precludes them from being in the real world, let alone the cyber world. Okay, time to find my cigar.

Art Bowker is the author of the soon to be released book The Cybercrime Handbook for Community Corrections: Managing Offender Risk in the 21st Century, publisher Charles C Thomas Pub Ltd. He has over 26 years experience in both law enforcement and corrections at the state and federal level. In 2008, Art was the International President of the High Technology Crime Investigation Association (HTCIA). This professional non-profit organization is the largest of its kind devoted to the prevention, investigation, and prosecution of crimes involving advanced technologies (htcia.org). Art is also member of the American Probation and Parole Association (APPA) and is a member of their Technology Committee, He has a Master of Corrections degree from Kent State University. Follow Art on Twitter.com at: (http://twitter.com/Computerpo)

Comments:

JohnDoeUtah on 05/23/2012:

Art, now we come to the root of the issue. The Constitutional protections afforded to all citizens of the United States. Due process and equal protection being key here. The punnishment, according to our justice system and Constitutions, concludes at the end of the sentence handed down by an impartial judge/jury. The only reason the sex offender registry is still around is because it was originally deemed a non-punitive, regulatory scheme that involved very minimal or no restriction. It is fine to restrict probationers and parolees, their sentence is not complete. However, society has over the years morphed the sex offender registry into a system of extended probation and parole with all the "additional" RESTRICTIONS added since its progulmation. States continue to justify these restrictions under SCOTUS's ruling of constitutionality of a much less restrictive version of the law; society is not stupid, and niether are sex offenders, the game is up. You cannot punnish someone for a new crime that they have not committed, or that you think they may someday commit. Technical violations of which you speak are again based solely on opinion of what may happen, not on what happened in fact, our constitution is not designed to support that type of justice system. The recidivism rates are the facts of the matter, and the facts matter most; your position is emotionally charged one and therefore not as relevant.

computerpo on 04/26/2012:

John I followed you up to the point of laws are not designed to deter or curtail sex crimes but to punish.... What is wrong with punishment? Maybe the reason some sex offenders have a low recivisim rate is because they were caught, punished, and don't want to be sent to prison or be under supervision, or stay on the reg any longer. Deterrence can be either specific or general. Maybe those low rates are the operation of specific deterence as opposed to general deterence...which stops the public at large from commiting crime. Maybe these sex offenders are deterred from second or third offenses because they were caught abd punished the first, There also is a thread running though society... That sex offenders deserve punishment for committing this type of crime. So claiming that these laws are wrong because they punish those who break them is not going to change the laws. Now if you want to argue that the punishment exceeds the harm that might be an argument... But how much punishment should a sex offender who abuses a child receive? Also I see the dance about recivism keeps getting limited to new sex crimes..,what about revocations for tech violations which involved risk.. Such as being around children unsupervised...those offenders return to custody for these violation do not look like repeat offenders,,, they were stopped before the tech violation became new criminal conduct. Also what about new crimes committed that we're not sex offenses? Again, recivism rates should not be simplyied by anyone.

computerpo on 04/26/2012:

John I followed you up to the point of laws are not designed to deter or curtail sex crimes but to punish.... What is wrong with punishment? Maybe the reason some sex offenders have a low recivisim rate is because they were caught, punished, and don't want to be sent to prison or be under supervision, or stay on the reg any longer. Deterrence can be either specific or general. Maybe those low rates are the operation of specific deterence as opposed to general deterence...which stops the public at large from commiting crime. Maybe these sex offenders are deterred from second or third offenses because they were caught abd punished the first, There also is a thread running though society... That sex offenders deserve punishment for committing this type of crime. So claiming that these laws are wrong because they punish those who break them is not going to change the laws. Now if you want to argue that the punishment exceeds the harm that might be an argument... But how much punishment should a sex offender who abuses a child receive? Also I see the dance about recivism keeps getting limited to new sex crimes..,what about revocations for tech violations which involved risk.. Such as being around children unsupervised...those offenders return to custody for these violation do not look like repeat offenders,,, they were stopped before the tech violation became new criminal conduct. Also what about new crimes committed that we're not sex offenses? Again, recivism rates should not be simplyied by anyone.

JohnDoeUtah on 04/14/2012:

Art, I see your point with regard to Moses statement; but, Moses is right. Statistically, these laws are not justified. Your, "if it saves one child" argument is an emotionally charged sound bite not supported by the facts. You argue that sex offenders should be treated differently based on several factors, yet the system you support and defend is vastly geared towards treating all sexual offenders as if we ARE the all the same (most if not all sexual offenders are not set apart under the law, all are equal). We argue, based on the evidence, we are not more dangerous than your average citizen (95% of all new sex crime committed by first-time offenders). You argue, forget the real problem and lets attack and restrain the rights of those responsible for the least amount of future sex crime. Sex offender laws are not designed to deter or curtail sex crime (as the statistics prove), they are designed to punnish.

computerpo on 04/03/2012:

Moses, you are attempting to simplify a very complex issue namely sex offender recidivism rates. In a weird way, you are guilty of the same tenancy... Namely claiming all sex offenders are the same....or at least the same recidivism rate... That ain't so...
There are different rates for different types of sex offenders... Rapist, child molesters, incest offenders, all have different rates... The rates are usually higher for sex offenders whose victim is a stranger, a child, and a male. The rates also are impacteded by treatment and supervision. I encourage everyone to check out http://www.csom.org/pubs/recidsexof.html Additionaly I would note that even one more victim of a sex crime is too much...hence the public concern that theses offenders be stopped.

Moses Gilbert Jr on 03/30/2012:

What is hysterical about all these laws to curtail sex offenders rights is that no matter what law is created, nothing will stop a sex offender from re offending if that is their aim. We spend countless millions on trying to prevent sex offenders from re-offending when they have the second lowest recidivism rate after murderer, less than 5%.

computerpo on 03/27/2012:

Thanks John. We will see how the courts rule on these issues in the future. There may be some scaling back, particularly for those who have completed their sentence, including community supervision (parole, supervised release etc.). However, I don't see there be a reduction in disclosure for those under community supervision. That said it will not be public disclosure. Sex offenders are not all the same and therefore the risk is not all the same. However, the risk that is present can be increased if there is no computer management coupled with lack of treatment for some of these cases. That said we need to get away from a one size approach. Thanks again and take care.

JohnDoeUtah on 03/27/2012:

Art, I have to admit, this may be the one article that you have written that I really don't have any issues with. Except your support of the disclosure of internet identifiers. As we all know, the Supreme Court did not take my case. The Tenth Circuit stated that I had no Fourth Amendment protection because I disclosed the information to third parties (ie., ISPs and websites) when I registered for services. However, in U.S. v Jones (2012), the Supreme Court made a huge departure from prior Fourth Amendment doctrine. Justice Sotomayor stated specifically, "I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." Justice Soyomator's words echo precisely my arguments that my internet identifiers are private information that the government has no right to without a warrant - maybe the tides are turning? I see the online identifier section of the AWA and state laws coming to an end within the next 4-5 years. Otherwise, good article, I'm impressed that you have lowered the pitchfork a bit, although your core arguments about dangerouness and recidivism are not based on fact (I have a list of factual goverment-sponsored studies to cite as sources).